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Thursday, March 17, 2016

"Advice and Consent" as Hendiadys

I am an admitted skeptic of English as a discipline; particularly when it seeks to intrude on other (e.g., my) academic domains and argue that literary theory is the key to understanding some legal dilemma or constitutional controversy. But I have to say that today I attended a fantastic workshop featuring UCLA Law Professor Samuel Bray and his forthcoming article "'Necessary AND Proper' and 'Cruel AND Unusual': Hendiadys and the Constitution." It actually did a great job of making me rethink a number of knotty problems of constitutional interpretation.

The underlying paper is excellent, not the least of which is that it taught me how to pronounce "hendiadys" (actually, pretty much as it's spelled: "hen-DIA-u-dus"). A hendiadys is special case of the written construction "X and Y". Normally, that's a conjunction referring to two separate things. So if I ask for "eggs and milk", I want two items purchased. If I write that an applicant must be "college educated and have four years of relevant experience," I've put down two qualifications.

In a hendiadys, however, "X and Y" refers to a single concept. If I say that my steak is "nice and juicy", I'm not giving two characteristics ("nice" and "juicy"), I'm giving it one -- "nice and juicy" refers to a single attribute. Likewise with common expressions like "rough and tumble" or "high and mighty." These refer to one thing rather than two.

As the title suggests, Bray applies this concept to two "X and Y" constructions in the Constitution which have typically been given the standard conjunctive read. Under this view, to be unconstitutional under the Eighth Amendment a punishment must be both "cruel" AND "unusual" -- two criterion , of which both must be met. More recently the Supreme Court's Obamacare decision did a similar thing with regard to "necessary and proper" -- Chief Justice Roberts' opinion indicated that the law might have been "necessary" to effectuate Commerce Clause ends, but it separately analyzed whether it was "proper" and concluded it was not.

What's wrong with this? Sometimes the conjunctive reading leads to perplexing results, or doesn't seem to match our understanding of what the text means, or just seems awkward. Consider "necessary and proper". Bray observes first that, at the time of the founding, the term "necessary and proper" was almost always treated and discussed as a single term -- there are very few contemporaneous sources that sought to disaggregate them into two distinct qualifications. Moreover, "necessary" is a pretty hard word -- while people have tried to argue that it can mean "convenient" or "useful", that's far from the natural reading. Yet if necessary does means something closer to "indispensable", what non-superfluous work could "proper" do -- presumably any law which is unavoidably required to achieve a licensed congressional power is also a "proper" law? It'd be a weird thing to write (and weirder still since the man who inserted "and proper" into the clause, James Wilson, was a fierce proponent of a strong national government and would have been unlikely to have sought a further limitation on congressional power beyond "necessary").

As a hendiadys, however, "necessary and proper" modulate each other, creating a single hybrid requirement that evokes attributes of each. "Proper" tempers "necessary", suggesting that it is something closer to "useful" or "convenient". But "necessary" in turn alters "proper", suggesting that a law must have some non-trivial bearing on an articulated congressional power to be valid. Bray has fuller arguments for this in his paper, and I encourage you to read it.

Another potential example of a constitutional hendiadys which springs to my mind is "advice and consent" -- as in the President's power to appoint Supreme Court Justices "by and with the Advice and Consent of the Senate." This has obviously become quite timely with the nomination of Merrick Garland to the Supreme Court, and the position of many Senate Republicans that they will refuse to even consider his (or any other) nomination in favor of whomever the next President selects.

Of course, it is perfectly grammatical to read it conjunctively: for a judicial appointment to be confirmed, the Senate must provide (a) its advice and (b) its consent. But this duo of obligations rings very odd when you think about it: we seem to pay very little attention to the "advice" part. If the President selects his nominee with zero input from the Senate and the Senate proceeded to immediately confirm the nomination by unanimous vote, would the constitution have been violated? I'm highly skeptical. "Advice" seems superfluous.

"Consent", for its part, is like "necessary" -- it's a hard word. It denotes agreement, and it does not suggest any restriction on the bases for which the Senate can withhold its approval. If the Constitution simply said "the President, with the consent of the Senate, shall appoint" justices of the Supreme Court, it would seem to place the two branches on equal footing with respect to judicial nominations -- the President and the Senate must come to a mutual agreement on who goes on the Supreme Court, with both branches possessing equally legitimate authority to veto the choice.

Yet this doesn't track the norms of judicial nominations at all. For nearly all of American history, the Senate has never acted as if it could withhold consent to a presidential nominee simply because there was someone else they liked better, or because they'd rather their party was in control of the White House. Their confirmation role has been much weaker -- withholding consent only for unqualified nominees, or perhaps nominees so ideologically extreme as to demand an exception. The default was heavily titled in favor of the President -- the Senate will not reject judicial nominees simply because, on balance, it'd prefer someone else to be making the choice; it acknowledges a default presumption (and a relatively strong one at that) that the President should be able to appoint the nominee of his choosing. And it is the breach of that historical practice that is why today's liberals are so aggrieved: the Senate's position right now (refusing to confirm any nominee while it waits a year for a new president to take office) is, as a historical matter, an unprecedented deployment of the "advice and consent" power.

Reading "advice and consent" as a hendiadys helps put some constitutional muscle behind that instinct. Just as "necessary" and "proper" modulate each other, the term "advice" tempers "consent." It suggests that the consent power the Senate possesses ought to be an advised consent -- not an automatic consent, not an unconsidered consent, but still a consent that places the Senate in a subordinate, advisory position. This tracks well with the historical practice identified above, wherein Senators have not acted as if they can simply withhold consent for no other reason than the preference for a different candidate. The Senate, historically, has treated "advice and consent" as a hendiadys; they have voluntarily agreed to exercise the power in a way that acknowledges the president's superordinate position in the nominating position.

None of this means I think there is any actionable case against Senate Republicans for refusing to utilize their consent power in an "advised" fashion (if for no other reason than it's an obvious political question). But I do think reading this clause as a hendiadys better gets at how the executive and Senate have generally conceptualized their respective roles in the nomination process across American history, and so gives some credence to the idea that liberal objectors to the blanket obstructionism of Senate Republicans are appealing to a norm with genuine constitutional roots.

Of course, these are my thoughts less than 24 hours after reading Professor Bray's paper. His argument, with respect to the two clauses he focuses on, is much more polished than mine. And, as I say, it is an article well worth reading.

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